Rang Nath Mishra vs State Of U.P.& Ors on 10 April, 2015

caselaws

Supreme Court of India
Rang Nath Mishra vs State Of U.P.& Ors on 10 April, 2015Author: R Gogoi

Bench: Ranjan Gogoi, N.V. Ramana

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.3581 OF 2015
[Arising out of Special Leave Petition (Civil) No.13697 of 2012]

RANG NATH MISHRA …APPELLANT

VERSUS

STATE OF UTTAR PRADESH
& ORS. …RESPONDENTS

JUDGMENT

RANJAN GOGOI, J.

1. Leave granted.

2. The challenge in this appeal is to the order dated 11th
November, 2011 passed by the High Court of Judicature at Allahabad in Writ-
C No.62471 of 2011 by which the writ petition filed by the appellant has
been dismissed.

3. The challenge in the writ petition, inter alia, was against the
report dated 4th October, 2011 of the Lokayukta, U.P. containing the
following recommendations:

4. As the aforesaid recommendations of the Lokayukta, U.P. have
been implemented and necessary action in terms thereof has been taken, the
relief prayed for in this appeal has been truncated to a declaration that
the aforesaid report dated 4th October, 2011 of the Lokayukta, U.P. is
contrary to the mandatory procedure prescribed under the U.P. Lokayukta &
Up-Lokayuktas Act, 1975 (for the sake of convenience hereinafter referred
to as “the Act”) and that the said report suffers from vice of non-
application of mind.

5. The brief facts antecedent to the report dated 4th October,
2011 of the Lokayukta, U.P. may now be conveniently taken note of at the
outset.

It appears that the respondent No.4 in the present appeal,
Swami Nath Misra, had submitted an undated complaint to the Hon’ble
President of India, Prime Minister of India, Governor of U.P., Lucknow and
Chairman, Central Board of Direct Taxes, Income Tax Department, New Delhi
demanding an enquiry in to the alleged acquisition of huge assets by the
appellant who was then serving as a Cabinet Minister in the State of Uttar
Pradesh. The said complaint was reiterated by a reminder dated 27th
August, 2010 which was, inter alia, addressed to the Lokayukta, U.P. A
communication dated 18th October, 2010 was addressed to the appellant by
the Secretary of the Lokayukta, U.P. intimating him that the Lokayukta,
U.P. has decided to hold a preliminary enquiry into the complaint, a copy
of which was forwarded to the appellant. The said letter dated 18th
October, 2010 was followed by another letter dated 18th November, 2010. It
appears that the 2nd communication (reminder) dated 27th August, 2010 sent
by the complainant, inter alia, to the Lokayukta, U.P. was not accompanied
by an affidavit of the complainant which apparently was filed later i.e. on
22nd December, 2010. This was done apparently when the appellant had
demanded that a copy of such affidavit be made available to him.
Thereafter, a letter dated 14th February, 2011 was sent by the office of
the Lokayukta, U.P. to the appellant intimating him that the complaint
filed against the appellant has been accepted for investigation. The
appellant raised an objection dated 10th April, 2011 with regard to the
maintainability of the complaint on the ground of its improper presentation
and also on the ground that the complaint was not supported by an affidavit
of the complainant, as required. No specific order was passed on the said
objection raised by the appellant. Instead, correspondences were exchanged
by and between the office of the Lokayukta, U.P. and the appellant seeking
and submitting the replies of the appellant and the documents in support of
the stand taken by the appellant in the said replies. Eventually, the
report dated 4th October, 2011 was submitted, the contents of which have
already been noted. It is the legality and the legitimacy of the said
report rendered in the aforesaid circumstances that was challenged before
the High Court resulting in the decision dated 11th November, 2011 which
has been impugned in the present appeal before us.

6. The facts and events that have occurred after submission of the
report dated 4th October, 2011 of the Lokayukta, U.P. may now be taken note
of.

On the basis of the said report of the Lokayukta, U.P. the then
Chief Minister of the State of Uttar Pradesh had dropped the appellant from
the Council of Ministers on the very next day i.e. 5th October, 2011.
Thereafter, an Open Vigilance Enquiry against the appellant was ordered and
on the basis of the report of the said enquiry a decision was taken that a
criminal case under the Prevention of Corruption Act, 1988 be instituted
against the appellant by the Vigilance Department of the State.
Accordingly, a FIR was filed against the appellant which was duly
investigated and charge-sheet dated 30th July, 2013 was filed in the court
of competent jurisdiction. Cognizance of the offences alleged was taken
and subsequently on 19th August, 2013 charges have been framed against the
appellant in the Court of the learned Special Judge (Prevention of
Corruption Act), Varanasi under Sections 13(1)(e) and 13(2) of the
Prevention of Corruption Act, 1988. The appellant is presently facing
trial in the said case.

7. Insofar as the recommendations of the Lokayukta, U.P. with
regard to the Gram Sabha land allegedly in the possession of the appellant
is concerned, the enquiries held had exonerated the appellant.

8. We have heard Dr. Rajeev Dhawan, learned Senior Counsel
appearing for the appellant and Mr. Ravi Prakash Mehrotra, learned counsel
for the State of Uttar Pradesh. We have also considered the written
arguments submitted for and on behalf of the parties.

9. The challenge made by the appellant primarily revolves around
the maintainability of the complaint filed by the 4th respondent and the
legality and legitimacy of the procedure adopted by the Lokayukta, U.P. in
making the recommendations set out in the report dated 4th October, 2011.

10. To appreciate the arguments advanced by the rival parties it
will be necessary to take note of the relevant provisions of the Act which
are extracted below:

11. Dr. Rajeev Dhawan, learned Senior Counsel appearing for the
appellant has very strenuously urged that the investigation/enquiry
undertaken by the Lokayukta, U.P. in the present case being in respect of a
matter covered by the Third Schedule is barred under the provisions of
Section 8(1)(b)(i) of the Act read with the Third Schedule. It is further
argued that there was no complaint to the Lokayukta, U.P. as mandatorily
required under Section 9 and assuming that the reminder dated 27th August,
2010 can be treated as a complaint it was not supported by an affidavit of
the complainant. Dr. Dhawan has further argued that under Rule 5 of the
Uttar Pradesh Lokayukta and Up-Lokayukta Complaint Rules, 1977 (hereinafter
referred to as “the Rules”) framed under the Act, a complainant can be
granted an opportunity to make up the deficiencies in the complaint within
a fixed period. The provisions of the said Rules, however, cannot override
the requirement of filing an affidavit which is mandated by Section 9(2) of
the Act. Alternatively, it is urged that even if the said deficiency i.e.
absence of the affidavit of the complainant can be cured what had happened
in the present case is that the said affidavit of the complainant was filed
on 22nd December, 2010 whereas notice of preliminary enquiry was issued to
the appellant on 18th October, 2010. Dr. Dhawan has further argued that in
the present case no preliminary enquiry was held inasmuch as no decision on
such preliminary enquiry was communicated to the appellant as required
under the Act. Furthermore, it is urged that the Lokayukta, U.P. in the
present case had acted in undue haste inasmuch as though the appellant on
29th September, 2011 had prayed for 15 days’ time to furnish the requisite
documents, the report was published on 4th October, 2011 without reference
to and due consideration of the request made by the appellant. Lastly, it
is urged that there was no investigation in the case as mandated by the Act
and no opportunity of personal hearing was afforded to the appellant.

12. Controverting the aforesaid submissions made on behalf of the
appellant, Shri Ravi Prakash Mehrotra, learned counsel for the State of
Uttar Pradesh has urged that the objections raised by the appellant before
this Court are mere reiterations of what has been urged before the High
Court. All such pleas were adequately considered by the High Court in the
impugned order dated 11th November, 2011 and there is no basis to reopen
the said findings and conclusions of the High Court. Pointing out the
provisions of Section 10(3) of the Act, Shri Mehrotra has urged that the
procedure for conducting a proceeding under the Act would be as may be
considered appropriate by the Lokayukta in the facts of any given case.
Shri Mehrotra has further urged that in the present case on receipt of the
report of the Lokayukta necessary action has been taken and presently a
criminal trial is pending against the appellant. There will, therefore, be
no basis for this Court to interdict the report of the Lokayukta.

13. We have considered the submissions made on behalf of the
parties.

14. It is correct that on 18th October, 2010 when the appellant was
intimated by the office of the Lokayukta that a decision has been taken to
hold a preliminary enquiry into the complaint filed by the respondent No.4
and a copy of the complaint along with the enclosures thereto were
forwarded to the appellant, the complaint filed was not supported by an
affidavit of the complainant – respondent No.4. The said fact was pointed
out by the appellant in his letter dated 20th December, 2010 addressed to
the Secretary, Lokayukta, U.P. Thereafter, it appears that the complainant
had filed an affidavit on 22nd December, 2010 in support of the complaint.
The said affidavit was taken on record and thereafter a letter dated 14th
February, 2011 was sent by the Under Secretary of the Lokayukta, U.P.
informing the appellant that the complaint filed by the 4th respondent has
been accepted for investigation. Though not expressly mentioned the
reception/acceptance of the affidavit of the complainant filed belatedly
was permissible in view of the provisions of Rule 5 of the Rules.
Thereafter, the appellant raised his objections regarding the
maintainability of the complaint and the affidavit filed. Instead of
passing a specific order on the aforesaid issue of maintainability raised
by the appellant it appears that communications were addressed by the
office of the Lokayukta, U.P. to the appellant asking for submission of
replies and documents which communications were duly responded to by the
appellant from time to time i.e. 5th July, 2011, 5th August, 2011 and 24th
August, 2011. The said facts would indicate that the preliminary objection
raised by the appellant did not find favour of the Lokayukta. The same was
not expressly recorded but clearly evident from the steps taken in
continuance of the proceeding which was not objected to by the appellant.

15. On receipt of the documents submitted by the appellant on the
various dates mentioned above, the office of the Lokayukta, U.P. by letter
dated 20th September, 2011 asked for further documents from the appellant
i.e. consolidated audited balance sheet of last three years of Keshav
Prasad Indravati Devi Smriti Seva Samiti, Modern Girls Inter College,
Abhaypur, Keshav Prasad Indravati Devi Balika Inter College Sahsepur, the
Registration Certificate of Income Tax made in Form 12-A in respect of
Keshav Prasad Indravati Devi Smriti Seva Samiti and copies of Income Tax
Return filed in Form 7 in last three years in respect of Keshav Prasad
Indravati Devi Smriti Seva Samiti. The appellant by letter dated 29th
September, 2011 asked for 15 days’ time. Instead on 4th October, 2011 the
report of the Lokayukta, U.P. was submitted.

16. Though the first complaint (undated) submitted by the
respondent No.4 was not addressed to the Lokayukta, U.P., the reminder
dated 27th August, 2010 was addressed, inter alia, to the Lokayukta, U.P.
If that is so, there is no reason why the same cannot be understood to be a
complaint to the Lokayukta, U.P. for further action on the basis thereof.
If reception/acceptance of a subsequent affidavit of the complainant in
support of a complaint filed earlier is contemplated by Rule 5 of the
Rules, we do not see why any fault can be found in the action of the
Lokayukta, U.P. in accepting the affidavit dated 22nd December, 2010
submitted by the complainant. Though the notice dated 18th October, 2010
for preliminary enquiry was issued at an earlier stage, it is by the
communication dated 14th February, 2011, (after receipt of the affidavit
dated 22nd December, 2010) that the appellant was informed that the
complaint of the respondent No.4 has been accepted for investigation under
Section 10(1)(a) of the Act. If, in the light of the aforesaid facts, the
Lokayukta, U.P. had decided to proceed further in the matter and had issued
communications to the appellant asking for his reply and documents in
defence which were adequately responded to by the appellant on several
dates, as noticed earlier, we do not see how the appellant can be
understood to be justified in raising the issue of defect of procedure
before the High Court and before this Court. The capitulation of the
relevant dates and events leave no room for doubt that all requirements
under the Act have been complied with in the instant case.

17. While it is correct that the report of the Lokayukta was
submitted without affording any opportunity of personal hearing to the
appellant and the request for time for submission of the documents made by
the appellant on 29th September, 2011 was refused by the Lokayukta, the
said facts cannot constitute good and sufficient basis for this Court to
find fault with the conduct of the proceedings by the Lokayukta, U.P. in
view of the provisions of Section 10(3) of the Act which, as already
noticed, leaves to the Lokayukta the discretion to adopt such procedure as
may be considered appropriate in the given facts of the case. No prejudice
also has been caused to the appellant who had taken part in the proceedings
at every stage. The refusal to grant further time to the appellant, an
issue over which some grievance has been raised, is a matter of discretion
vested in the Lokayukta and any decision thereon either way cannot be a
legitimate basis for interference.

18. Before parting, the issue with regard to the jurisdiction of
the Lokayukta to proceed in the instant matter in view of the provisions of
the Third Schedule to the Act must be answered. What the Third Schedule to
the Act contemplates is that the Lokayukta in the course of an
investigation under the Act will not investigate a crime or determine the
question as to whether the matter “shall go to, or shall continue to be
prosecuted in a court or not”. In the present case, the recommendations of
the Lokayukta were merely for an investigation as to whether a case for
prosecution of the appellant is made out or not. Accordingly, the matter
was investigated and presently is under trial in a court of competent
jurisdiction. All the said subsequent facts as noted in details at the very
outset make it clear that even if the contentions of the appellant with
regard to the Third Schedule to the Act are to be accepted, (we make it
clear that we do not accept the same), the question that would arise has
become wholly academic.

19. In the light of the above, we find no merit in this appeal. It
is accordingly dismissed, however, without any order as to costs.

………………..,J.
(RANJAN GOGOI)

………………..,J.
(N.V. RAMANA)
NEW DELHI
APRIL 10, 2015

Comments

You must be logged in to post a comment.

Rang Nath Mishra vs State Of U.P.& Ors on 10 April, 2015

Ganga Dhar Kalita vs State Of Assam & Ors on 13 April, 2015

Ambica Prasad vs Md. Alam And Anr on 8 April, 2015

Comments

Leave a Reply

Ganga Dhar Kalita vs State Of Assam & Ors on 13 April, 2015

Ambica Prasad vs Md. Alam And Anr on 8 April, 2015

Comments

Leave a Reply

Sign In

Register

Reset Password